Opinion
22-3153-JWL
05-09-2023
DAVID JOHN DAVIS, Plaintiff, v. DAN SCHNURR, et al., Defendants.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
This matter is a civil rights action filed under 42 U.S.C. § 1983. Plaintiff alleges that he was violently assaulted by Hutchinson Correctional Facility (“HCF”) staff during a forced cell trransfer.
After ordering, receiving, and reviewing a Martinez Report (Doc. 19-22, 25) in this case, the Court entered a memorandum and order to show cause (“MOSC 2”) (Doc. 26) directing Plaintiff to show cause why this matter should not be dismissed for failure to state a claim on which relief can be granted and for failure to exhaust administrative remedies. This matter is before the Court on Plaintiff's Response (Doc. 35) to the MOSC 2 and the Martinez Report.
The MOSC 2 found that the Martinez Report contained no support for Plaintiff's allegation that he was “violently sexually assaulted” by three defendants, noting that Plaintiff's various accounts of the incident made prior to filing this lawsuit, as documented in the Report, did not mention a violent sexual assault. (Doc. 26, at 5). The MOSC 2 further found that Plaintiff's allegation that he was handled roughly during a cell transfer and had his clothing cut off of him failed, without more, to state a claim of violation of the United States Constitution. (Id.)
Upon review of Plaintiff's Response (Doc. 35), the document does not in fact respond to the MOSC 2 or the Martinez Report. Plaintiff filed the exact same document in response to the first MOSC (Doc. 5) issued by the Court on August 3, 2022. (See Doc. 7). Therefore, Plaintiff has not challenged the factual findings of the Martinez Report.
The Martinez Report “is treated like an affidavit, and the court is not authorized to accept the factual findings of the prison investigation when the plaintiff has presented conflicting evidence.” Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (citing Sampley v. Ruettgers, 704 F.2d 491, 493 n.3 (10th Cir. 1983)). However, “absent valid challenge,” the Martinez Report “may be treated as providing uncontroverted facts.” Gardiner v. McBryde, No. 15-3151-DDC-JPO, 2020 WL 42272, at *3 (D. Kan. Jan. 3, 2020) (quoting Hartz v. Sale, 687 Fed.Appx. 783, 785 (10th Cir. 2017)).
The Court finds that Plaintiff has not shown good cause why this matter should not be dismissed for the reasons explained in the MOSC 2.
IT IS THEREFORE ORDERED that this matter is dismissed for failure to state a claim upon which relief may be granted.
IT IS SO ORDERED.